eaglepointe development response and counter claims

24
Benson L. Hathaway, Jr. (Bar No. 4219) R. Gary Winger (Bar No.6456) Analise Q. Wilson (Bar No. 13845) KIRTON McCONKIE 50 East South Temple, Suite 400 P.O. Box 45120 Salt Lake City, Utah 84111-1004 Telephone: (801) 328-3600 [email protected] [email protected] [email protected] Attorneys for Defendants Eaglepointe Development, L.C., SKY Properties, Inc., B & E Pace Investment, LLC; and Excel Investment Corp. IN THE SECOND JUDICIAL DISTRICT COURT IN AND FOR DAVIS COUNTY, STATE OF UTAH KERN RIVER GAS TRANSMISSION COMPANY, a Texas General Partnership, Plaintiff, v. EAGLEPOINTE DEVELOPMENT, L.C., a Utah limited liability company; SKY PROPERTIES, INC., a Utah corporation; B & E PACE INVESTMENT, LLC, a Utah limited liability company; EXCEL INVESTMENT CORP., a Utah corporation; and GSH GEOTECHNICAL, INC., a Utah corporation; and JOHN DOES 1-10, Defendants. ANSWER, COUNTERCLAIM, CROSSCLAIM, AND THIRD PARTY COMPLAINT Civil No. 150700450 Honorable David R. Hamilton Tier 3 EAGLEPOINTE DEVELOPMENT, L.C., a Utah limited liability company; SKY PROPERTIES, INC., a Utah corporation; B & E PACE INVESTMENT, LLC, a Utah limited liability company; and EXCEL INVESTMENT CORP., a Utah corporation, Counterclaimants,

Upload: brian-grimmett

Post on 17-Sep-2015

11 views

Category:

Documents


0 download

DESCRIPTION

In response to a lawsuit filed against them by Kern River Gas, Eaglepointe Development has produced some counter claims of their own, including naming a homeowner as part of the cause of the landslide.

TRANSCRIPT

  • Benson L. Hathaway, Jr. (Bar No. 4219) R. Gary Winger (Bar No.6456) Analise Q. Wilson (Bar No. 13845) KIRTON McCONKIE 50 East South Temple, Suite 400 P.O. Box 45120 Salt Lake City, Utah 84111-1004 Telephone: (801) 328-3600 [email protected] [email protected] [email protected] Attorneys for Defendants Eaglepointe Development, L.C., SKY Properties, Inc., B & E Pace Investment, LLC; and Excel Investment Corp.

    IN THE SECOND JUDICIAL DISTRICT COURT

    IN AND FOR DAVIS COUNTY, STATE OF UTAH

    KERN RIVER GAS TRANSMISSION COMPANY, a Texas General Partnership,

    Plaintiff, v. EAGLEPOINTE DEVELOPMENT, L.C., a Utah limited liability company; SKY PROPERTIES, INC., a Utah corporation; B & E PACE INVESTMENT, LLC, a Utah limited liability company; EXCEL INVESTMENT CORP., a Utah corporation; and GSH GEOTECHNICAL, INC., a Utah corporation; and JOHN DOES 1-10, Defendants.

    ANSWER, COUNTERCLAIM, CROSSCLAIM, AND THIRD PARTY

    COMPLAINT

    Civil No. 150700450

    Honorable David R. Hamilton

    Tier 3

    EAGLEPOINTE DEVELOPMENT, L.C., a Utah limited liability company; SKY PROPERTIES, INC., a Utah corporation; B & E PACE INVESTMENT, LLC, a Utah limited liability company; and EXCEL INVESTMENT CORP., a Utah corporation, Counterclaimants,

  • v. KERN RIVER GAS TRANSMISSION COMPANY, Counterclaim Defendant. EAGLEPOINTE DEVELOPMENT, L.C., a Utah limited liability company; SKY PROPERTIES, INC., a Utah corporation; B & E PACE INVESTMENT, LLC, a Utah limited liability company; and EXCEL INVESTMENT CORP., a Utah corporation, Cross Claimants, v. GSH GEOTECHNICAL, INC Cross Claim Defendants. EAGLEPOINTE DEVELOPMENT, L.C., a Utah limited liability company; SKY PROPERTIES, INC., a Utah corporation; B & E PACE INVESTMENT, LLC, a Utah limited liability company; and EXCEL INVESTMENT CORP., a Utah corporation, Third Party Plaintiffs, v. SANKIS, LLC; EAGLERIDGE TENNIS CLUB, INC.; JEANETTE EVANS; PAUL EVANS; and EARTHTEC ENGINEERING, INC.; and JOHN DOES 1-10, Third Party Defendants.

    In response to Plaintiff Kern River Gas Transmission Companys (Kern River) complaint

    (Complaint), Defendants Eaglepointe Development, LLC, (Eaglepointe), Sky Properties,

    2 4847-2232-2724

  • Inc., B&E Pace Investment, LLC, and Excel Investment Corp. (Landowners), through counsel

    of record, hereby answer by admitting, denying and affirmatively averring as follows:

    INTRODUCTORY STATEMENT

    A focused and intense rain storm on August 5, 2014 triggered a landslide in the foothills

    of North Salt Lake resulting in damage to a home, improvements and property. The August 5th

    storm was the final contributing factor in the collapse of the hillside in North Salt Lake City. It

    turns out that the structural integrity of the hillside had been incrementally degraded in the years

    leading up to the August 5th storm by such things as increased groundwater flows diverted from

    natural channels and concentrated into the failed hillside via man-made aquifers (including Kern

    Rivers pipeline trench); the removal of the toe of the failed hillside in the development of the

    foot of the slope; excessive landscape irrigation; and, the natural geological make-up and

    material strata of the failed hillside. Kern River notes that it was quick to hire geotechnical

    experts to advise it on the protection of the integrity of its pipeline and [to] ensure [itself] of the

    safe operation of [its] pipelines. In contrast, notwithstanding these multiple causes and conduct

    of others, and notwithstanding only a small portion of the collapsed hillside is on Eaglepointes

    property, Eaglepointe began immediately and continues through the present, to act quickly and in

    the public interest. Over the course of the ensuing ten months and at its sole expense,

    Eaglepointe has, among other things, paid for temporary housing for displaced families, repaired

    damaged real and personal property of threatened homeowners, built and paid for a replacement

    home for a family whose home was destroyed, and hired geotechnical engineers to design a plan

    to repair and secure the failed hillside. By its Counterclaim, Crossclaim and Third Party

    Complaint, Eaglepointe seeks to have the responsible parties pay for the damage resulting from

    the August 5, 2014 failure of the North Salt Lake hillside.

    3 4847-2232-2724

  • FIRST DEFENSE

    Plaintiffs Complaint fails to state a claim upon which relief can be granted against the

    Eaglepointe and the Landowners.

    SECOND DEFENSE

    In response to the specific allegations of the Complaint, Eaglepointe and the Landowners:

    1. Admit paragraph 1.

    2. Admit paragraph 2.

    3. Admit paragraph 3.

    4. Admit paragraph 4.

    5. Admit paragraph 5.

    6. Admit paragraph 6.

    7. Admit paragraph 7.

    8. Admit paragraph 8.

    9. Admit paragraph 9.

    10. Admit paragraph 10.

    11. Admit Kern Rivers Pipelines are to be located within the boundaries of a Right-

    of-Way Easement, that the Right-of-Way Easement speaks for itself, but deny the remaining

    allegations of paragraph 11.

    12. Admit Eaglepointe developed Lots 1901 through 1907 and 1813 of the

    Eaglepointe Estates, but deny the remaining allegations of paragraph 12.

    13. Admit Eaglepointe Estates includes a Sensitive Area District as designated by

    North Salt Lake; that North Salt Lake Ordinance 10-12-1 et seq. speaks for itself, but deny the

    remaining allegations of paragraph 13.

    4 4847-2232-2724

  • 14. Admit North Salt Lake Ordinance 10-12-1 et seq. speaks for itself, but deny the

    remaining allegations of paragraph 14.

    15. Admit Eaglepointe commissioned an engineering study in 2003 from AGEC, that

    the 2003 Study speaks for itself, but deny the remaining allegations of paragraph 15.

    16. Admit the 2003 Study speaks for itself, but deny the remaining allegations of

    paragraph 16.

    17. Are without knowledge and information sufficient to form a belief about the truth

    of the statement in paragraph 17.

    18. Admit Eaglepointe developed its property and that of adjoining Landowners, but

    deny the remaining allegations of paragraph 18.

    19. Admit Eaglepointe commissioned an engineering study in compliance with city

    ordinances dated June 12, 2013 and supplemented November 14, 2013, that the 2013 Study, as

    supplemented, speaks for itself, but deny the remaining allegations of paragraph 19.

    20. Admit the 2013 Study speaks for itself, but deny the remaining allegations of

    paragraph 20.

    21. Admit the 2013 Study speaks for itself, but deny the remaining allegations of

    paragraph 21.

    22. Are without knowledge and information sufficient to form a belief about the truth

    of the statement in paragraph 22.

    23. Admit the 2013 Study speaks for itself, but deny the remaining allegations of

    paragraph 23.

    24. Are without knowledge and information sufficient to form a belief about the truth

    of the statement in paragraph 24.

    25. Deny paragraph 25.

    5 4847-2232-2724

  • 26. Deny paragraph 26.

    27. Admit paragraph 27.

    28. Admit Eaglepointe contacted GSH, that the GSH Supplement speaks for itself,

    but deny the remaining allegations of paragraph 28.

    29. Admit the GSH Supplement speaks for itself, but deny the remaining allegations

    of paragraph 29.

    30. Deny paragraph 30.

    31. Admit a landslide occurred on August 5, 2014, but deny the remaining allegations

    of paragraph 31.

    32. Admit paragraph 32.

    33. Are without knowledge and information sufficient to form a belief about the truth

    of the statement in paragraph 33.

    34. Are without knowledge and information sufficient to form a belief about the truth

    of the statement in paragraph 34.

    35. Are without knowledge and information sufficient to form a belief about the truth

    of the statement in paragraph 35.

    36. Deny paragraph 36.

    37. Deny paragraph 37.

    38. Deny paragraph 38.

    39. Are without knowledge and information sufficient to form a belief about the truth

    of the statement in paragraph 39.

    40. Are without knowledge and information sufficient to form a belief about the truth

    of the statement in paragraph 40.

    6 4847-2232-2724

  • 41. Are without knowledge and information sufficient to form a belief about the truth

    of the statement in paragraph 41.

    42. Incorporate responses to paragraphs 1 through 41 above.

    43. Deny paragraph 43.

    44. Deny paragraph 44.

    45. Deny paragraph 45.

    46. Are without knowledge and information sufficient to form a belief about the truth

    of the statement in paragraph 46.

    47. Deny paragraph 47.

    48. Incorporate responses to paragraphs 1 through 47 above.

    49. Deny paragraph 49.

    50. Deny paragraph 50.

    51. Deny paragraph 51.

    52. Incorporate responses to paragraphs 1 through 51 above.

    53. Admit Eaglepointe is aware of the contents of the 2003 Study, but deny the

    remaining allegations of paragraph 53.

    54. Deny paragraph 54.

    55. Deny paragraph 55.

    56. Deny paragraph 56.

    57. Deny paragraph 57.

    58. Incorporate responses to paragraphs 1 through 57 above.

    59. Admit GSH was engaged by Eaglepointe, that GSHs several studies and reports

    speak for themselves, but deny the remaining allegations of paragraph 59.

    60. Admit paragraph 60.

    7 4847-2232-2724

  • 61. Admit paragraph 61.

    62. Admit paragraph 62.

    63. Admit paragraph 63.

    64. Are without knowledge and information sufficient to form a belief about the truth

    of the statement in paragraph 64.

    65. Admit the Eaglepointe and the Landowners relied on GSHs representations, but

    are without knowledge and information sufficient to form a belief about the truth of the

    remaining statement in paragraph 65.

    66. Deny paragraph 66.

    67. Deny paragraph 67.

    68. Incorporate responses to paragraphs 1 through 67 above.

    69. Deny paragraph 69.

    70. Deny paragraph 70.

    71. Deny paragraph 71.

    72. Deny paragraph 72.

    73. Deny paragraph 73.

    Deny every allegation not specifically admitted in this Answer.

    THIRD AFFIRMATIVE DEFENSE

    Plaintiffs claims are barred in whole or in part by the doctrine of unclean hands.

    FOURTH AFFIRMATIVE DEFENSE

    Plaintiff has waived, or is estopped by its own actions upon which Eaglepointe and the

    Landowners reasonably relied from asserting, all or part of the claims set forth in its complaint.

    8 4847-2232-2724

  • FIFTH AFFIRMATIVE DEFENSE

    Plaintiffs claims are barred in whole or in part by the doctrine of laches and/or the

    applicable statutes of limitations including, but not limited to Utah Code 78B-2-305, 307, 309

    and 314.

    SIXTH AFFIRMATIVE DEFENSE

    Plaintiffs claims are barred in whole or in part by Plaintiffs failure to mitigate its

    damages.

    SEVENTH AFFIRMATIVE DEFENSE

    Eaglepointe and the Landowners specifically reserve the right to assert any additional

    defenses.

    PRAYER FOR RELIEF

    WHEREFORE, Eaglepointe and the Landowners demand relief on the Complaint as

    follows:

    A. For an order dismissing each and every claim for relief in the Complaint against

    Eaglepointe and the Landowners with prejudice and on the merits;

    B. For Eaglepointe and the Landowners attorneys fees and costs to the extent

    permitted by law; and

    C. For such further relief as the Court may deem appropriate.

    COUNTERCLAIM, CROSS CLAIM AND THIRD PARTY COMPLAINT

    For Counterclaim, Crossclaim and Third Party Complaint against the following parties,

    Eaglepointe Development, L.C., SKY Properties, Inc., B & E Pace Investment, LLC, and Excel

    Investment Corp. allege and complain as follows:

    9 4847-2232-2724

  • Parties, Jurisdiction and Venue

    1. Eaglepointe Development, L.C. (Eaglepointe), is a Utah limited liability company

    with its principal place of business in Davis County, Utah.

    2. Sky Properties, Inc. (Sky Properties), is a Utah corporation with its principal place

    of business in Davis County, Utah.

    3. B & E Pace Investment, LLC (B & E Pace), is a Utah limited liability company

    with its principal place of business in Davis County, Utah.

    4. Excel Investment Corp. (Excel) is a Utah corporation with its principal place of

    business in Davis County, Utah. SKY, B & E Pace and Excel are collectively referred to as

    Landowners.

    5. Counterclaim Defendant Kern River Gas Transmission Company (Kern River) is a

    Texas general partnership with its principal place of business in Salt Lake City, Utah.

    6. Crossclaim Defendant GSH Geotechnical, Inc. (GSH), is a Utah corporation with

    its principal place of business in Salt Lake County, Utah.

    7. Third Party Defendant Sankis, LLC (Sankis) is, on information and belief, a Utah

    limited liability company with its principal place of business in Davis County, Utah.

    8. Third Party Defendant Eagleridge Tennis Club, Inc. (Eagleridge) is, on information

    and belief, a Utah corporation with its principal place of business in Davis County, Utah.

    9. Third Party Defendants Jeanette and Paul Evans (Evans) are individuals residing in

    Davis County, Utah.

    10. Third Party Defendant Earthtec Engineering, Inc. (Earthtec) is, on information and

    belief, a Utah corporation with its principal place of business in Weber County, Utah.

    11. Third Party Defendants John Does 1-10 include but are not limited to any companies

    or individuals who have caused or contributed to the cause of the landslide that is the subject of this

    lawsuit, or owners, members, shareholders, officers or directors of any company party identified

    10 4847-2232-2724

  • herein which is shown to have been undercapitalized, dissolved or otherwise failed to comport with

    proper corporate formalities.

    12. This dispute arises from the parties ownership of real property and real property

    rights and interests located in Davis County, Utah; contracts entered into and to be performed in

    Davis County, Utah; and conduct of the parties occurring in Davis County, Utah.

    13. This court is vested with jurisdiction over this matter pursuant to Utah Code 78A-5-

    102.

    14. Venue is properly laid in this district pursuant to Utah Code 78B-3-301, 304 and

    307.

    General Allegations

    15. A focused and intense rain storm on August 5, 2014 triggered a landslide in the

    foothills of North Salt Lake resulting in damage to a home, improvements and property

    (Landslide).

    Facts Concerning Kern River

    16. Kern River is the owner and operator of certain gas transmission facilities, including

    two 36-inch natural gas pipelines (the Pipelines) which pass through North Salt Lake, Utah (the

    City).

    17. Kern Rivers Pipelines are located within the boundaries of an Exclusive Right-of-

    Way Easements held by Kern River (the Easements). The Easements grant Kern River right-of-

    ways for the purpose of constructing and locating its Pipelines, as well as all rights necessary to

    operate, protect, and maintain the Pipelines.

    18. The Pipelines are located southwest of the Landslide area and are oriented in a

    southeast to northwest direction roughly oblique to slide movement. At its nearest point, one of Kern

    Rivers pipelines is located approximately 130 feet southwest of the left flank of the Landslide.

    11 4847-2232-2724

  • 19. In the fall of 2010, Kern River began to excavate a major trench at the top of the

    landslide area for the installation of a major gas pipeline.

    20. Kern Rivers installation of this gas pipeline at the top of the slope altered the natural

    groundwater hydrology as a result of the trenching activities and pipeline alignment, creating a

    conduit for groundwater flows, consequently diverting more water from historic natural channels and

    aquifers into the slope where the Landslide occurred.

    21. The increased groundwater flow disturbed the slopes stability.

    22. As a result of this instability, on the morning of August 5, 2014, the Landslide

    occurred south of Parkway Drive in North Salt Lake, Utah.

    Facts Concerning GSH

    23. In the late 1990s, Eaglepointe developed land in North Salt Lake City, including

    what would eventually become Lots 1901 through 1907 and 1813 of the Eaglepointe Estates

    development (Property).

    24. In 2013, in the course of seeking approval from the City for development of Phase 19

    of Eaglepointe Estates, including the Subject Property, Eaglepointe commissioned another

    engineering study in compliance with city ordinances in order to evaluate the feasibility of

    development and identify geologic hazards associated with the site. This study, by GSH (2013

    Study), was originally dated June 12, 2013.

    25. Among other things, GSH was engaged by Eaglepointe through its agent, SKY

    Properties, Inc., to evaluate the stability of the Property and suitability for development, as well as to

    prescribe conditions to be observed by Eaglepointe to ensure that adequate soil stability was

    maintained.

    26. GSH was aware, or should have been aware that the 2013 Study would be relied upon

    by Eaglepointe and, on information and belief, filed it with North Salt Lake City and/or Davis

    12 4847-2232-2724

  • County, as required by law. GSH was aware that North Salt Lake City and others would rely on the

    2013 Study and GSHs recommendations therein in governing development of the Property.

    27. Eaglepointe did reply upon GSHs study and representations and followed GSHs

    recommendations in developing the Property.

    28. GSH owed Eaglepointe both a common law and contractual duty to perform its work

    to industry standards and exercise the care and diligence of professionals in its industry.

    29. Upon information and belief, GSH failed to adequately evaluate the Property.

    Specifically, GSH failed to obtain and consider sufficient data, failed to properly evaluate its data and

    reach correct conclusions, and failed to make proper recommendations that would ensure continued

    stability of the hillside and adjacent to the Property.

    30. Upon information and belief, GSH, in its 2013 Study, negligently misrepresented the

    nature and geotechnical condition of the soils in the area of the Property, and negligently

    misrepresented the stability of the hillside on and adjacent to Eaglepointes Property.

    31. In late September or early October 2013, evidence of hillside movement was

    observed on real property owned by the Evans at 321 East Parkway Circle, and property owned by

    North Salt Lake City extending downhill to the northwest, near and adjacent to the Property.

    Specifically, a crack formed through the east corner of the Evans lot.

    32. Eaglepointe contacted GSH to investigate the cause of the cracking. Pursuant to

    Eaglepointes request, GSH supplemented its 2013 Study on November 14, 2013 (GSH

    Supplement). In supplementing its report, GSH excavated test pits to a depth of 5-8 feet in the area,

    and concluded in the GSH Supplement: [T]here may have been movement along the fill/natural

    clay contact; thus, it is our opinion that the slide is shallow and not deeper than a few feet below the

    existing ground surface.

    33. Based on GSHs recommendations, Eaglepointe continued with its development

    work on its Property and adjoining lands during the spring and summer of 2014.

    13 4847-2232-2724

  • 34. To the extent Eaglepointes actions contributed to the Landslide, those actions

    were a direct result of and in reliance on information provided Eaglepointe by GSH.

    Facts Concerning Sankis and Eagleridge

    35. Sankis and Eagleridge Tennis Club, Inc. (S&E) are, on information and belief the

    owners of certain real property in Davis County, Utah, situated at the base of the hillside which failed

    on August 5, 2104. S&E are also the owners and operators of the Eagleridge Tennis & Swim Club

    (Club), located at 711 South Parkway Drive, North Salt Lake, between Parkway Drive to the north

    and Eaglepointe Drive to the south.

    36. The Club consists of parking lots along the northwestern and western boundaries; a

    main building situated between two large, metal-framed tents covering three tennis courts each; a

    large pool and patio area; and an outbuilding.

    37. Since the late 1990s, Eaglepointe has been the developer and owner of certain land in

    North Salt Lake, Utah, which was portioned out in development phases containing residential lots to

    be sold as part of a residential real estate development (Eaglepointe Estates).

    38. On or about August 13, 2003, Eaglepointe negotiated and entered into an Eaglepointe

    Earnest Money Sales Agreement (Agreement) with S&E for the sale of lot numbers 508, 509, and

    510 of the Eaglepointe Subdivision plat 5, where the Club is now located.

    39. Upon acquiring these lots, S&E developed them for the construction of the Club.

    40. In S&Es efforts to expand the parking and to flatten more of the land for the

    installation of additional tennis courts, S&E cut and removed the toe of the existing 2H:1V slope of

    the hillside and constructed a 15 to 20 high retaining wall in its place.

    41. This excavation of material from the toe of the slope and placement of retaining walls

    adversely impacted the slopes stability by, among other things, removing lateral support of the hill

    and rendering the slope unable to maintain its grade and structure.

    14 4847-2232-2724

  • 42. As a result of this instability and lack of lateral support, on the morning of August 5,

    2014, the Landslide occurred south of Parkway Drive, damaging the real and personal property of

    Eaglepointe, SKY, B&E, Excel and others.

    Facts Concerning the Evans

    43. The Evans own property above the Landslide adjacent to Eaglepointes

    development.

    44. In September, 2013, the Evans reported to Eaglepointe and others that a fissure had

    appeared in the back, northwestern corner of their lot.

    45. Eaglepointe engaged GSH to inspect the fissure and provide recommendations to

    Eaglepointe how to remediate the fissure to enable Eaglepointe to continue to work on its Property.

    46. In response, GSH provided Eaglepointe its 2013 Study.

    47. In reliance on GSHs study, Eaglepointe remediated the fissure on the corner of the

    Evans lot.

    48. According to the records of North Salt Lake Public Works, the Evans used the

    following amounts of water during the following years in irrigating his lot and landscaping:

    a. 2010: 509,000 gallons;

    b. 2011: 330,000 gallons;

    c. 2012: 416,000 gallons;

    d. 2013: 385,000 gallons; and

    e. 2014: 556,000 gallons.

    The Evans water use totals nearly 2 times more gallons per year than their neighbor who owns

    a comparably sized lot.

    15 4847-2232-2724

  • 49. The Evans use of water during the summer of 2014 for purposes of irrigating

    their yard and landscaping was extreme and excessive, which excess water, on information and

    belief, migrated into the hillside which failed in August 2014 as part of the Landslide.

    50. Upon information and belief, the Evans historical practice of introducing

    excessive amounts of water into the soils and hillside above and about the Landslide area

    resulted in water migrating into the hillside following the natural drainage flows and grade, and

    contributed to the instability of the soil.

    51. Upon information and belief, the resulting instability contributed to the Landslide.

    Facts Concerning Earthtec

    52. In 2013, in the course of seeking approval from the City for the construction of a

    home on Lot 1813 of the Eaglepointe Estates Phase 18, including part of the subject property,

    Eaglepoint commissioned another engineering study in compliance with city ordinances in order

    to evaluate the feasibility of proposed construction and to identify geologic hazards associated

    with the site. This study, by Earthtec (Earthtec Study), was dated April 5, 2013.

    53. Among other things, Earthtec was engaged by Eaglepointe to evaluate the

    stability of Lot 1813 and its suitability for home construction, as well as to prescribe conditions

    to be observed by Eaglepointe to ensure that adequate soil stability was maintained.

    54. Earthtec was aware, or should have been aware that the Earthtec Study would be

    relied upon by Eaglepointe in improving Lot 1813 and, on information and belief, subsequent

    owners of Lot 1813 and the public generally.

    55. Eaglepointe relied upon the Earthtec Study and its representations and followed

    Earthtecs recommendations in improving Lot 1813.

    56. Earthtec owed Eaglepointe both a common law and contractual duty to perform

    its work to industry standards and exercise the care and diligence of professionals in its industry.

    16 4847-2232-2724

  • 57. Upon information and belief, Earthtec failed to adequately evaluate Lot 1813.

    Specifically, Earthtec failed to obtain and consider sufficient data, failed to properly evaluate its

    data and reach correct conclusions, and failed to make proper recommendations that would

    ensure continued stability of the hillside on and adjacent to Lot 1813.

    58. Upon information and belief, Earthtec, in its Earthtec Study, negligently

    misrepresented the nature and geotechnical condition of the soils in the area of Lot 1813, and

    negligently misrepresented the stability of the hillside on and adjacent to Eaglepointes lot.

    59. To the extent Eaglepointes actions contributed to the Landslide, those actions on

    Lot 1813 were a direct result of and in reliance on information provided Eaglepointe by Earthec.

    FIRST CLAIM FOR RELIEF (Negligence Against Kern River)

    60. Eaglepointe and the Landowners incorporate and reallege the facts and allegations

    set forth in Paragraphs 1-59 above.

    61. As the owner of a property interest, Kern River has a duty to use and maintain its

    property in a manner that will not injure surrounding property owners use and enjoyment of

    their property.

    62. Kern River breached that duty by, among other things, excavating a major trench

    in the slope and altering the ground water hydrology, resulting in the transmission of water onto

    the hillside where the Landslide occurred.

    63. As a result of Kern Rivers breach, Eaglepointe and the Landowners have

    sustained damages and continue to sustain damages in an amount to be shown at trial.

    SECOND CLAIM FOR RELIEF (Negligence Against GSH)

    64. Eaglepointe and the Landowners incorporate and reallege the facts and allegations

    set forth in Paragraphs 1-63 above.

    17 4847-2232-2724

  • 65. Eaglepointe retained GSH to perform geotechnical engineering services. Such

    work and services included evaluating the feasibility of development and identifying geologic

    hazards associated with the Property.

    66. GSH had a duty to perform such work and services in accordance with industry

    standards, in accordance with applicable building code(s), in accordance with best practices in

    the industry and in accordance with recommendations and requirements imposed by other

    geotechnical experts and related studies or reports.

    67. Upon information and belief, GSH breached its duties by failing to, among other

    things, obtain and consider sufficient data, failing to properly evaluate its data and reach correct

    conclusions, and failing to make proper recommendations that would ensure continued stability

    of the Property.

    68. Eaglepointe and the Landowners have been damaged as a result of the GSHs

    defective work.

    THIRD CLAIM FOR RELIEF (Breach of Contract/Warranty-Against GSH)

    69. Eaglepointe and the Landowners incorporate and reallege the facts and allegations

    set forth in Paragraphs 1-68 above.

    70. Eaglepointe entered into a valid and enforceable contract.

    71. Eaglepointe fully performed and satisfied all of its obligations under the

    agreement that it entered into with GSH.

    72. GSH failed to complete its work in accordance with the agreement that it entered

    into with Eaglepointe.

    73. Eaglepointe has sustained damages as a result of GSHs breach.

    18 4847-2232-2724

  • FOURTH CLAIM FOR RELIEF (Contribution and/or Indemnity- Against GSH)

    74. Eaglepointe and the Landowners incorporate and reallege the facts and allegations

    set forth in Paragraphs 1-73 above.

    75. In the underlying complaint, Kern River makes claims against the Eaglepointe

    and the Landowners alleging that the Eaglepointe and the Landowners are responsible for the

    Landslide.

    76. Eaglepointe entered into a contract with GSH whereby GSH agreed to evaluate

    the feasibility of development and identifying geologic hazards associated with the Property,

    such as landslides.

    77. Pursuant to principles of equity and justice, to the extent Eaglepointe and the

    Landowners are held liable for damages associated with the Landslide, that liability should be

    allocated to GSH.

    78. Eaglepointe and the Landowners have sustained damages in this case due to Kern

    Rivers claims related to GSHs work at the project. Eaglepointe and the Landowners will

    sustain additional damages in the event Kern River is able to prove the existence of the defects

    that are alleged in its complaint.

    79. Eaglepointe and the Landowners are entitled to recover such damages from GSH.

    FIFTH CLAIM FOR RELIEF (Negligence Against S&E)

    80. Eaglepointe and the Landowners incorporate and reallege the facts and allegations

    set forth in Paragraphs 1-79 above.

    81. As a property owner, S&E has a duty to use and maintain its property in a manner

    that will not injure surrounding property owners use and enjoyment of their property.

    19 4847-2232-2724

  • 82. S&E breached that duty by, among other things, excavating and removing the toe

    of the hill, removing lateral support and thereby destabilizing the hillside.

    83. As a result of S&Es breach and the resulting Landslide, Eaglepointe and the

    Landowners have sustained damages and continue to sustain damages in an amount to be shown

    at trial.

    SIXTH CLAIM FOR RELIEF (Negligence Against the Evans)

    84. Eaglepointe and the Landowners incorporate and reallege the facts and allegations

    set forth in Paragraphs 1-83 above.

    85. As property owners, the Evans have a duty to use and maintain their property in a

    manner that will not injure surrounding property owners use and enjoyment of their property.

    86. The Evan breached that duty by, among other things, using excessive and

    extraordinary amounts of water on their property over the past several years, which has

    incrementally and consistently inundated the soil of the hillside and contributed to its instability.

    87. As a result of the Evans breach and the resulting Landslide, Eaglepointe and the

    Landowners have sustained damages and continue to sustain damages in an amount to be shown

    at trial.

    SEVENTH CLAIM FOR RELIEF (Negligence Against Earthtec)

    88. Eaglepointe and the Landowners incorporate and reallege the facts and allegations

    set forth in Paragraphs 1-87 above.

    89. Eaglepointe retained Earthtec to perform geotechnical engineering services. Such work

    and services included evaluating the feasibility of improvements and identifying geologic hazards

    associated with the Property.

    20 4847-2232-2724

  • 90. Earthtec had a duty to perform such work and services in accordance with industry

    standards, in accordance with applicable building code(s), in accordance with best practices in the

    industry and in accordance with recommendations and requirements imposed by other geotechnical

    experts and related studies or reports.

    91. Earthtec breached its duties by failing to, among other things, obtain and consider

    sufficient data, failing to properly evaluate its data and reach correct conclusions, and failing to make

    proper recommendations that would ensure continued stability of Lot 1813.

    92. Eaglepointe and the Landowners have been damaged as a result of the Earthtecs

    defective work.

    EIGHTH CLAIM FOR RELIEF (Breach of Contract/Warranty-Against Earthtec)

    93. Eaglepointe and the Landowners incorporate and reallege the facts and allegations set

    forth in Paragraphs 1-92 above.

    94. Eaglepointe entered into a valid and enforceable contract with Earthtec.

    95. Eaglepointe fully performed and satisfied all of its obligations under the agreement that it

    entered into with Earthec.

    96. Earthtec failed to complete its work in accordance with the agreement that it entered into

    with the Eaglepointe.

    97. Eaglepointe has sustained damages as a result of Earthtecs breach.

    NINTH CLAIM FOR RELIEF (Contribution and/or Indemnity- Against Earthtec)

    98. Eaglepointe and the Landowners incorporate and reallege the facts and allegations

    set forth in Paragraphs 1-97 above.

    99. In the underlying complaint, Kern River makes claims against the Eaglepointe and the

    Landowners alleging that the Eaglepointe and the Landowners are responsible for the Landslide.

    21 4847-2232-2724

  • 100. Eaglepointe entered into a contract with Earthtec whereby Earthtec agreed to evaluate the

    feasibility of improvement of and identifying geologic hazards associated with Lot 1813, such as

    landslides.

    101. Pursuant to principles of equity and justice, to the extent Eaglepointe and the Landowners

    are held liable for damages associated with the Landslide, that liability should be allocated to Earthtec.

    102. Eaglepointe and the Landowners have sustained damages in this case due to Kern Rivers

    claims related to Earthtecs work at the project. Eaglepointe and the Landowners will sustain additional

    damages in the event Kern River is able to prove the existence of the defects that are alleged in its

    complaint.

    103. Eaglepointe and the Landowners are entitled to recover such damages from

    Earthtec.

    PRAYER FOR RELIEF

    WHEREFORE, the Eaglepointe and the Landowners pray for relief against Counterclaim

    Defendant, Cross Claim Defendant, and Third Party Defendants as follows:

    1. Under the First Claim for Relief, judgment against Kern River in an amount to be

    proven at trial.

    2. Under the Second Claim for Relief, judgment against GSH in an amount to be

    proven at trial.

    3. Under the Third Claim for Relief, judgment against GSH in an amount to be

    proven at trial.

    4. Under the Forth Claim for Relief, judgment against GSH in an amount to be

    proven at trial.

    5. Under the Fifth Claim for Relief, judgment against S&E in an amount to be

    proven at trial.

    22 4847-2232-2724

  • 6. Under the Sixth Claim for Relief, judgment against the Evans in an amount to be

    proven at trial.

    7. Under the Seventh Claim for Relief, judgment against the Earthtec in an amount

    to be proven at trial.

    8. Under the Eighth Claim for Relief, judgment against the Earthtec in an amount to

    be proven at trial

    9. Under the Ninth Claim for Relief, judgment against the Earthtec in an amount to

    be proven at trial

    10. Attorneys fees and costs incurred in this action; and

    11. Any other relief the Court deems just and equitable.

    DATED this 2nd day of June, 2015.

    KIRTON McCONKIE By: /s/Benson L. Hathaway, Jr. Benson L. Hathaway, Jr. R. Gary Winger Analise Q. Wilson

    Attorneys for Defendants Eaglepointe Development, L.C., SKY Properties, Inc., B & E Pace Investment, LLC, and Excel Investment Corp.

    23 4847-2232-2724

  • CERTIFICATE OF SERVICE

    I hereby certify that on this 2nd day of June, 2015, a true and correct copy of the foregoing ANSWER, COUNTERCLAIM, CROSSCLAIM AND THIRD PARTY COMPLAINT was served on the following by the method indicated below: John A. Snow Alex B. Leeman VAN COTT BAGLEY CORNWALL & McCARTHY 36 South State Street, Suite 1900 Salt Lake City, UT 84111-1478 Attorneys for Plaintiff

    ( ) U.S. Mail, Postage Prepaid ( ) Hand Delivered ( ) Overnight Mail ( ) Facsimile (X) E-Filer

    /s/Wendy Maynard

    24 4847-2232-2724

    2015-06-02T17:23:12-0600Salt Lake City, UtahAdministrative Office of the CourtsDocument: Filed with the Utah State Courts